Bailey v. Warlick
| Decision Date | 05 October 1943 |
| Docket Number | 14601. |
| Citation | 27 S.E.2d 322,196 Ga. 642 |
| Parties | BAILEY et ux. v. WARLICK. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where, in response to an application for the writ of habeas corpus for custody of an infant child, the defendants objected by special plea to the jurisdiction of the court in which the proceeding was brought, and filed also a general response or answer, and the judge, after hearing evidence passed two separate and distinct orders, one denying the special plea, and the other awarding custody to the plaintiff, and where the defendants assigned error only upon the judgment awarding custody, no question is presented as to correctness of the ruling on the special plea.
2. The evidence did not as a matter of law demand a finding that the plaintiff father had relinquished parental control and right of custody to the defendants; his own testimony being to the effect that his surrender of such custody was only temporary and this evidence not being conclusively rebutted by the other evidence.
3. The evidence as to fitness of the father for custody of the child and as to suitability of the home in which he proposed to take it, being conflicting, and that introduced by him being sufficient, if believed, to authorize a finding in his favor upon these issues, the judgment awarding custody to him cannot be disturbed by this court, in so far as these questions are concerned. Nor does other cause for reversal appear.
The exception is to a judgment awarding custody of Katherine Warlick, a child of seven months, to her father, C. R Warlick, Jr., who had brought habeas corpus proceedings against W. C. Bailey and his wife, a sister of the child's mother. It appears from the record that the child was born in an Atlanta hospital on September 9, 1942, and that her mother died two days later. The child was carried to the home of her father in Atlanta, and there remained until November 15, being cared for during this period by the defendant Mrs. Bailey and Mrs. Bailey's mother. She was then taken to the Bailey home in Hogansville, Troup County and on April 20, 1943, her father instituted the present action in Troup superior court against Mr. and Mrs. Bailey, for the child's custody. The defendants pleaded to the jurisdiction of that court, asserting that on April 16 the judge of the juvenile court of Troup County Attached to the plea was a copy of an affidavit made by the Baileys, on which the judge of the juvenile court entered the judgment referred to in the plea; also copy of that judgment.
The defendants by answer also alleged: Mrs. Katherine Warlick, the mother of the infant in controversy, died on or about November 11, 1942, leaving the two or three days old baby. The child was kept in the home of C. R. Warlick, Jr., its father, until November 15, 1942, at which time, and in compliance with a request of the child's mother, that it be given to the defendants, the plaintiff then and there acceded to the wishes of the child's mother and voluntarily relinquished his right as father to the defendants. It was definitely agreed and understood between them and C. R. Warlick, Jr., that they were to have the child permanently, and that he was giving the child to them without any restrictions. The plaintiff is not a proper person to have this child, and the home in which he proposes to place the child is not suitable. The defendants are of good moral character, physically, morally, and financially able to rear said child, and they took it with the definite understanding that it was to remain with them as their own child, and they have provided for said child all food, clothing, medical care and attention required since they have had it in their home, and that the plaintiff has not contributed anything to its support. Defendants would not have accepted said child as a temporary arrangement, and would not have taken it into their home and learned to love and care for it as they now do, had the plaintiff not agreed as hereinbefore stated. On or about April 16, 1943, said child was placed in their custody by the judge of the juvenile court of Troup County; and in addition to holding said child under contract with its father, they have the full right, power, and authority to hold said child as a ward of the juvenile court of Troup County. Defendants prayed that the child be awarded to them 'as their very own.'
On April 30, after a hearing, the judge entered the following order on the plea to the jurisdiction: 'On hearing evidence in the above case on the foregoing special plea, it is ordered and adjudged that said plea be and the same is denied.' He also passed an order awarding custody of the child to C. R. Warlick, Jr., the father.
It is recited in the bill of exceptions: 'The defendants having been served and having filed an answer in said case, and both parties having announced ready, the plaintiff introduced evidence in support of his petition, and the defendants introduced evidence to support their answer; and after argument had thereon, the judge then and there presiding rendered judgment awarding custody of Katherine Warlick, subject-matter of said writ, to plaintiff as prayed in said petition, to which judgment awarding the custody of said Katherine Warlick to plaintiff' the defendants excepted.
While all of the evidence except a letter was in the form of affidavits, the affiants may be sometimes referred to as witnesses, or as having testified. The plaintiff testified: He further testified, that after he notified the Baileys of his intention to come for the child, they employed an attorney, and sent to deponent the 'papers issued by the juvenile court of Troup County, Georgia, without notice and without opportunity being given C. R. Warlick, Jr., for a hearing,' that deponent
C. R. Warlick, Sr., and his wife testied: 'That they are father and mother respectively of C. R. Warlick, Jr., and live in a five-room apartment, with sufficient room for C. R. Warlick, Jr., and his two children; stating they are willing to look after, care for the children, and that C. R. Warlick, Jr., is the proper person to have custody of his child; that he has done a good part by the other child who is eleven years of age; that this child is well-be-haved, quiet, and a good child, and attends church and Sunday School regularly and lives an upright Christian life; that C. R. Warlick, Jr., does not drink whisky, and there is no reason why he should not have the custody of the child.' Other witnesses testified as to the good character of the plaintiff and his parents, and as to their home being a proper place for rearing the infant.
The defendants introduced affidavits to the effect that the plaintiff was sometimes intemperate, was of questionable moral character, and had not properly provided for his wife. It was stated in some of these affidavits that the plaintiff and his older child resided with his parents and his sister and her husband, in a five-room apartment; that they were not churchgoing people, were quarrelsome, and that in affiants' opinion this home was not one in which an infant child could be properly cared for and reared. Numerous affidavits, as to the good character of the defendants and the fitness of their home for caring for the infant, were not disputed by the plaintiff. It appeared from the evidence that the plaintiff had paid nothing for the support of the child since the Baileys carried her to their home, but that no request had been made of him as to such support.
Mr. and Mrs. Bailey testified in detail as to the circumstances in which the child was...
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